811 F.2d 366 (7th Cir. 1987), 86-1410, Bailey v. Andrews

Docket Nº:86-1410.
Citation:811 F.2d 366
Party Name:Joseph L. BAILEY, Plaintiff-Appellee, v. Kevin C. ANDREWS, Defendant-Appellant.
Case Date:February 03, 1987
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 366

811 F.2d 366 (7th Cir. 1987)

Joseph L. BAILEY, Plaintiff-Appellee,


Kevin C. ANDREWS, Defendant-Appellant.

No. 86-1410.

United States Court of Appeals, Seventh Circuit

February 3, 1987

Argued Sept. 23, 1986.

As Amended May 22, 1987.

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[Copyrighted Material Omitted]

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Jay T. Hirschauer, Hirschauer & O'Neill, Logansport, Ind., for defendant-appellant.

Roger William Bennett, Bennett Boehning Poynter & Clary, Lafayette, Ind., for plaintiff-appellee.

Before BAUER, Chief Judge, WOOD, Circuit Judge, and ESCHBACH, Senior Circuit Judge.

HARLINGTON WOOD, Jr., Circuit Judge.

This is an appeal of a judgment entered on a jury verdict awarding Plaintiff-Appellee Joseph L. Bailey $80,000 in Bailey's civil rights suit against Defendant-Appellant Kevin C. Andrews, a police officer employed by the Town of Fowler, Indiana. Andrews attacks the verdict on the grounds that Bailey was collaterally estopped from disputing that Andrews had probable cause to arrest Bailey, that Andrews was entitled to immunity from prosecution for his actions, and that the jury was not given sufficient evidence to find that Andrews violated Bailey's constitutional rights. Alternatively, Andrews argues that the jury's verdict on damages is excessive. We hold that the jury's decision on liability is valid and supported by the evidence, but we remand the case for a new trial on damages. 1


The suit arose out of a dispute between the parties regarding Bailey's dog. After a brief absence, Bailey returned home to find his dog missing. Bailey, searching for his dog, approached Andrews, who was parked in his police car in front of the Fowler Town Hall. Bailey asked Andrews whether the police had any knowledge of the dog's whereabouts. Andrews's noncommittal response failed to satisfy Bailey, who asked whether Andrews had shot his dog, saying that he wanted his "damn dog." Bailey's questions and comments apparently angered Andrews, who got out of his car to arrest Bailey. The plaintiff and the defendant scuffled in the street in front of the Fowler Town Hall until Andrews was able to handcuff Bailey. There was evidence that Andrews kicked Bailey during the scuffle. While Bailey was handcuffed, Andrews quickly searched Bailey's car. Andrews then took Bailey to the county police station. Bailey was not seriously injured and did not seek medical help; he did, however, suffer bruises and emotional distress. 2

Bailey brought suit in district court against Andrews, police officer Dan Klapp, and the Town of Fowler 3 under 42 U.S.C. Sec. 1983 (1982) alleging violations of his rights under the first, fourth, eighth, and fourteenth amendments to the United

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States Constitution. After a jury trial, Bailey was awarded $80,000, including $25,000 in punitive damages against Andrews. The clerk entered a judgment on June 27, 1985. The judge then stated that he would give the defendant 18 days, rather than the 10 days allowed by the Federal Rules of Civil Procedure, in which to file motions for a directed verdict and a new trial. Andrews filed his motion for a new trial under Fed.R.Civ.P. 59(b) fifteen days later, on July 12, 1985, and the district court granted the motion conditionally on September 9, 1985, ordering a new trial unless Bailey accepted a remittitur to $17,000. Bailey rejected the remittitur, so on October 7, 1985, the court made the order for a new trial unconditional.

On October 17, 1985, Bailey petitioned this court for a writ of mandamus directing the district court to set aside the order for a new trial and to reinstate the final judgment. This court found that the district court exceeded its jurisdiction by granting a new trial on an untimely motion, and issued the writ on February 10, 1986, reinstating the jury verdict. Bailey v. Sharp, 782 F.2d 1366 (7th Cir.1986) (per curiam). On February 14, 1986, the district court, in compliance with the writ, entered judgment in favor of Bailey for $80,000. The judgment was entered for purposes of appeal only; this case is that appeal.


  1. Collateral Estoppel

    Andrews raises several arguments attacking the jury's verdict for Bailey. First, Andrews argues that Bailey was collaterally estopped from disputing that Andrews had probable cause to arrest Bailey. In a preliminary probable cause hearing in Benton County Circuit Court on May 2, 1984, eleven days after Bailey's arrest, Judge Shipman found probable cause to proceed on a disorderly conduct charge. Andrews argues that this finding collaterally estops Bailey from claiming that his arrest was unlawful.

    As we recognized in Guenther v. Holmgreen, 738 F.2d 879, 884 (7th Cir.1984), cert. denied, 469 U.S. 1212, 105 S.Ct. 1182, 84 L.Ed.2d 329 (1985), four requirements must be met before we will apply the collateral estoppel doctrine to a Sec. 1983 claim. The issue must be the same as that involved in the prior judicial proceeding; the issue must actually have been litigated; the issue must have been resolved; and the issue's determination must have been necessary to the judgment in the prior proceeding. Parklane Hosiery v. Shore, 439 U.S. 322, 326 n. 5, 99 S.Ct. 645, 649 n. 5, 58 L.Ed.2d 552 (1979); Ray v. Indiana & Michigan Electric Co., 758 F.2d 1148, 1150 (7th Cir.1985).

    As the Supreme Court noted in Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980), a federal court must "give preclusive effect to state-court judgments whenever the courts of the State from which the judgments emerged would do so." Id. at 96, 101 S.Ct. at 415. The Court has also indicated that federal courts should apply state collateral estoppel law in determining whether a Sec. 1983 claim is precluded by a prior state proceeding. Haring v. Prosise, 462 U.S. 306, 313, 103 S.Ct. 2368, 2373, 76 L.Ed.2d 595 (1983); Kremer v. Chemical Construction Corp., 456 U.S. 461, 482, 102 S.Ct. 1883, 1898, 72 L.Ed.2d 262 (1982); Guenther, 738 F.2d at 884. The Indiana Supreme Court's description of collateral estoppel differs somewhat from the standard outlined above. The court has held that "[t]he application of the principle of collateral estoppel involves a two-step process: (1) determine what the first judgment decided; and (2) examine how that determination bears on the second case." Webb v. State, 453 N.E.2d 180, 183 (Ind.1983), cert. denied, 465 U.S. 1081, 104 S.Ct. 1449, 79 L.Ed.2d 767 (1984).

    The state court judge decided that there was probable cause to proceed on a charge of disorderly conduct against Bailey. The probable cause determination was made at a criminal preliminary hearing designed to evaluate the sufficiency, but not the integrity, of the evidence against Bailey.

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    In Whitley v. Seibel, 676 F.2d 245 (7th Cir.), cert. denied, 459 U.S. 942, 103 S.Ct. 254, 74 L.Ed.2d 198 (1982), we held that a defendant was not collaterally estopped from bringing a Sec. 1983 action challenging the integrity of the evidence that was presented in a probable cause hearing. In Whitley, as in this case, the defendant "did not seek to relitigate the probable cause finding, but charged that the arresting officer's bad faith vitiated the finding." Id. at 249. Bailey sought to prove in his Sec. 1983 trial that Andrews could not have reasonably believed that Bailey was committing disorderly conduct and that his arrest was therefore in bad faith. Because the issue that Bailey litigated in the district court was not the same as that litigated in his probable cause hearing, we find that the doctrine of collateral estoppel does not apply.

    Additionally, we note that the probable cause hearing is an ex parte hearing at which the arresting officer is not required to appear. If the disorderly conduct charge had been prosecuted, Bailey would have had the opportunity to present evidence and cross-examine the state's witnesses. The charge was not prosecuted, however, so Bailey never had this opportunity. Although Bailey was present, he was not allowed to present any evidence, nor was he allowed to cross-examine the state's witnesses. We agree with the district court's ruling that "the lack of opportunity to cross-examine [is] of crucial importance in determining that Bailey did not have a full and fair opportunity to litigate the probable cause issue in this case. Accordingly, the court finds that plaintiff's constitutional claims relating thereto are not barred by collateral estoppel under Guenther." Court's Memorandum and Order, March 28, 1985.

    Because we find that the issues in the probable cause hearing and at the Sec. 1983 trial were not the same, and that Bailey did not have a full and fair opportunity to litigate the issue of probable cause, we find it unnecessary to reach the other elements of federal collateral estoppel analysis.

  2. Immunity

    Andrews also argues on appeal that he was entitled to either qualified or good faith immunity for his actions in arresting Bailey. The issue of immunity is one for the judge to decide. Llaguno v. Mingey, 763 F.2d 1560, 1569 (7th Cir.1985). The district court refused to grant Andrews immunity.

    The Supreme Court described the standard for qualified or good faith immunity in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Government officials "generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Id. at 818, 102 S.Ct. at 2738. For police officers specifically...

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